LWZ115 Lecture Notes - Lecture 1: Owen Dixon, Racial Discrimination Act 1975, Natural Justice
LWZ115 Legal Process – Statutory Interpretation
2018
The structure of the Australian Legal System
Case law
Cases can decide either the common law or law regarding the interpretation of a
statute (or less commonly the constitution)
The doctrine of precedent should be applied
The rationale for the doctrine of precedent:
“The doctrine of stare decisis takes its name from the Latin phrase ‘stare decisis et
non quieta movere’ which translates as ‘stand by the thing decided and do not disturb
the calm’. It is a doctine based on policy. The rationale for the doctrine can be
grouped into four categories: certainty, equality, efficiency and the appearance of
justice.” Branson and Finklestein JJ in Telstra Coroporation v Treloar (2000) 1 FCR
595 at 602
The Rationale for Precedent – It makes the law predictable; It is an inherent part of
our understanding of the rule of law; It guides judicial decision making in a ‘scientific’
and impartial manner; It provides some reinforcement for the principles of certainty,
equality, efficiency and an appearance of justice.
The ratio
Ratio decidendi - the reasons for the decision:
“The ratio is the principle or statement at law in which the previous decision is based
to the extent to which it is essential to the decision, it being recognised that there
may be more than one ratio when the Court assign more than one ground for its
decision.”
Separate judgements
Majority ratio will apply
Can be a situation with no majority ratio
Dissenting judgements are obiter
Take note also of dissenting judgments- these may be obiter
Obiter dicta
Obiter dicta refers to remarks or commentary by the court that are in regards to an
issue that is not directly before them.
Usually obiter is persuasive but not binding on lowed courts.
Obiter from the High Court, however, should be treated with great respect.
Ratio from superior courts will also be persuasive in all jurisdictions in Australia
Summary
The ratio decidendi is the reason(s) for the decision- must be directly applicable to
the case at hand
LWZ115 Legal Process – Statutory Interpretation
2018
Obiter dicta is when the court discusses legal issues not directly on point.
The ratio is binding on lower courts in the same hierarchy
Dicta is persuasive but not binding
Are courts bound by their own past decisions?
A court is generally not bound by its own past decisions but will only depart from
them with great reluctance.
The test here is that a decision is ‘plainly’, ‘clearly’ or ‘manifestly’ wrong
Technically, precedent does not apply to the High Court when interpreting the
constitution, although departing from a previous decision is not taken lightly.
Only statements of legal reasoning will be ratio or obiter
Only statements of reasoning in the case are ratio and obiter. Some part of the case
will talk about other things- eg the facts, the judge’s non-legal opinion, legal history
etc
Not every case will involve a decision at law, so not every case has a ratio.
Some cases may involve agreement between the parties as to the state of the law
and a dispute as to the facts.
One of the skills you will need to develop is an understanding of a point of fact and a
point of law.
It may be (as with the Administrative Appeals Tribunal) that an appeal can only be
made on a point of law.
Similar Legislation
Statute- consider whether it is Uniform Legislation or not. If so, then the notion of judicial
comity means it is preferable that in the name of consistency that the decision is followed.
“The duty of courts, when construing legislation, is to give effect to the purpose of the
legislation. The primary guide to understanding that purpose is the natural and
ordinary meaning of the words in the legislation. Judicial decisions on similar or
identical legislation in other jurisdictions are guides to, but cannot control, the
meaning of legislation in the court’s jurisdiction”
International Precedent
UK:
It used to be that decisions of the Privy Council were binding on all Australian Courts.
In the case of Viro v The Queen (1978) 18 ALR 257 the High Court decided that all
Privy Council decisions were merely persuasive.
In the modern context- their persuasive force has been diminished.
US:
LWZ115 Legal Process – Statutory Interpretation
2018
“American case law is a trackless jungle in which only the most intrepid and
discerning Australian lawyers should venture. It is possible to find American authority
to support almost any conceivable proposition of law.” [Sir Anthony Mason The Use
and Abuse of Precedent p20]
International Precedent
Most useful in the area of human rights and interpreting the constitution.
Common law nations decisions may be more persuasive, especially New Zealand.
Canadian decisions may also be given consideration.
Can be considered as “…useful only to the degree of persuasiveness of their
reasoning” per Mason CJ, Wilson, Deane and Dawson JJ
Cook v Cook (1987) 162 CLR 376 at 390
“…there has been a growing willingness to consider expositions of basic doctrine in other
like common law countries. …Given that many common law courts of high authority embrace
an identical or similar rule to that propounded for the appellant, this Court should certainly
pause and reconsider its own contrary authority. This is not done in a quest to restore a
single legal rule for the entire common law world. From time to time this Court rejects or
declines to follow an authority which is settled in other countries. However where it is
shown that this Court’s authority is out of step with that of many other jurisdictions,
that demonstration concentrates attention on the justification for the disparity. It
poses the issue of principle and policy as to whether previous legal authority was
erroneous and should be changed.”
Esso Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 85 per Kirby
J:
Precedent- Modern Considerations
Statutes are taking over- common law precedent is on the decline
The growing number of settlements in litigation
Internationalisation of the common law
The proliferation of quasi-judicial decision-making bodies
Question of fact c/w question of law
When a fact is ’material’
Procedural history
Obiter Dicta
Obiter dicta- any discussion in relation to issues not before the court- also may
include parts of dissenting judgments in certain circumstances.
Obiter is not binding but merely persuasive.
The High Court may use obiter to indicate the way they might decide future cases or
cases that they would like to look at.
Document Summary
The structure of the australian legal system (cid:864)(cid:862)(cid:863)8. Cases can decide either the common law or law regarding the interpretation of a statute (or less commonly the constitution) The doctrine of precedent should be applied. The doctrine of stare decisis takes its name from the latin phrase stare decisis et non quieta movere" which translates as stand by the thing decided and do not disturb the calm". The rationale for the doctrine can be grouped into four categories: certainty, equality, efficiency and the appearance of justice. branson and finklestein jj in telstra coroporation v treloar (2000) 1 fcr. Ratio decidendi - the reasons for the decision: Can be a situation with no majority ratio. Take note also of dissenting judgments- these may be obiter. Obiter dicta refers to remarks or commentary by the court that are in regards to an issue that is not directly before them. Usually obiter is persuasive but not binding on lowed courts.
